Foreign Affairs Federalism: The Myth of

National Exclusivity 1st Edition Michael

J. Glennon
Visit to download the full and correct content document:
https://textbookfull.com/product/foreign-affairs-federalism-the-myth-of-national-exclusi
vity-1st-edition-michael-j-glennon/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

National Security and Double Government 1st Edition

Michael J. Glennon

https://textbookfull.com/product/national-security-and-double-
government-1st-edition-michael-j-glennon/

The Great Free Trade Myth: British Foreign Policy And

East Asia Since 1980 Michael Reilly

https://textbookfull.com/product/the-great-free-trade-myth-
british-foreign-policy-and-east-asia-since-1980-michael-reilly/

American National Security Michael J. Meese

https://textbookfull.com/product/american-national-security-
michael-j-meese/

Faith And Foreign Affairs In The American Century 1st

Edition Mark Thomas Edwards

https://textbookfull.com/product/faith-and-foreign-affairs-in-
the-american-century-1st-edition-mark-thomas-edwards/
Hitler s Revolution Ideology Social Programs Foreign
Affairs 1st Edition Richard Tedor

https://textbookfull.com/product/hitler-s-revolution-ideology-
social-programs-foreign-affairs-1st-edition-richard-tedor/

Examples Explanations Constitutional Law National Power

and Federalism 7th Edition Christopher N. May

https://textbookfull.com/product/examples-explanations-
constitutional-law-national-power-and-federalism-7th-edition-
christopher-n-may/

Rethinking Risk in National Security: Lessons of the

Financial Crisis for Risk Management 1st Edition
Michael J. Mazarr (Auth.)

https://textbookfull.com/product/rethinking-risk-in-national-
security-lessons-of-the-financial-crisis-for-risk-management-1st-
edition-michael-j-mazarr-auth/

Spooky Archaeology Myth and the Science of the Past Jeb

J. Card

https://textbookfull.com/product/spooky-archaeology-myth-and-the-
science-of-the-past-jeb-j-card/

What Is in the National Interest Hans Morgenthau s

Realist Vision and American Foreign Policy 4th Edition
J. Pham

https://textbookfull.com/product/what-is-in-the-national-
interest-hans-morgenthau-s-realist-vision-and-american-foreign-
policy-4th-edition-j-pham/
Foreign Affairs Federalism
Foreign Affairs
Federalism
The Myth of National Exclusivity
z
MICHAEL J. GLENNON
ROBERT D. SLOANE

1
 1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of
excellence in research, scholarship, and education by publishing worldwide.
Oxfordâ•…New York
Aucklandâ•…Cape Townâ•…Dar es Salaamâ•…Hong Kongâ•…Karachiâ•…Kuala Lumpurâ•…Madrid
Melbourneâ•…Mexico Cityâ•…Nairobiâ•…New Delhiâ•…Shanghaiâ•…Taipeiâ•…Toronto
With offices in
Argentinaâ•…Austriaâ•…Brazilâ•…Chileâ•…Czech Republicâ•…Franceâ•…Greeceâ•…Guatemalaâ•…Hungary
Italyâ•…Japanâ•…Polandâ•…Portugalâ•…Singaporeâ•…South Koreaâ•…Switzerlandâ•…Thailand
Turkeyâ•…Ukraineâ•…Vietnam
Oxford is a registered trademark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016
© Michael J. Glennon and Robert D. Sloane 2016
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of
Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the
appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope
of the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.

Library of Congress Cataloging-in-Publication Data

Names: Glennon, Michael J., 1947- author. | Sloane, Robert D., author.
Title: Foreign affairs federalism : the myth of national exclusivity /
â•… Michael J. Glennon, Robert D. Sloane.
Description: New York : Oxford University Press, 2016. |
Includes bibliographical references and index.
Identifiers: LCCN 2015039708 | ISBN 9780199941490 ((hardback) : alk. paper)
Subjects: LCSH: United States—Foreign relations—Law and legislation. |
â•… International relations—United States—States. | Federal
â•… government—United States. | Constitutional law—United States—States. |
â•… Treaty-making power—United States—States.
Classification: LCC KF4651 .G595 2016 | DDC 342.73/0412—dc23 LC record available at
http://lccn.loc.gov/2015039708

1╇3╇5╇7╇9╇8╇6╇4╇2

Printed in the United States of America on acid-free paper

Note to Readers
This publication is designed to provide accurate and authoritative information in regard to
the subject matter covered. It is based upon sources believed to be accurate and reliable and is
intended to be current as of the time it was written. It is sold with the understanding that the
publisher is not engaged in rendering legal, accounting, or other professional services. If legal
advice or other expert assistance is required, the services of a competent professional person
should be sought. Also, to confirm that the information has not been affected or changed by
recent developments, traditional legal research techniques should be used, including checking
primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com
For Joanna, William, Fiona, Miranda, and Alice
 Summary Table of Contents

Preface xv
Acknowledgments xxv

1. ╉Why Empower States? 1

2. ╉States, Cities, and Globalization 35
3. ╉Constitutional Methodology and the Role of the Courts 77
4. ╉Dormant Foreign-╉Affairs Preemption 87
5. ╉Dormant Foreign Commerce Preemption 147
6. ╉The Treaty Power 185
7. ╉Federal Common Law and State Power 247
8. ╉Federal Approval: The Compact Clause 277
9. ╉Federal Disapproval: Preemption 291
10. ╉A Case Study: States as Cyber-╉Defenders 319
11. ╉Conclusion 351

Table of Cases 371

Index 385
 Detailed Table of Contents

Preface xv
Acknowledgments xxv

1. ╉Why Empower States? 1

I. The Origins of American Federalism â•… 2
II. Federalism in the New Constitution â•… 16
III. The Functional Rationale for Federalism â•… 22
A. The Case for the Statesâ•… 22
1. Freedomâ•… 23
2. Efficiencyâ•… 24
3. Innovationâ•… 25
B. The Case against the Statesâ•… 26
1. The Inapplicability of the Traditional Federalist
Rationalesâ•… 27
2. The Danger of Retaliation against the Entire Nationâ•… 29
IV. Assessment â•… 31
2. ╉States, Cities, and Globalization 35
I. The Globalization Driver â•… 36
II. Federal Incapacity â•… 45
III. State Capacity â•… 55
IV. State Activities in the International Realm â•… 60
A. Compacts and Agreements with Foreign Countriesâ•… 60
B. Adoption of International Standardsâ•… 62
C. State Offices in Foreign Countriesâ•… 64
D. State Representatives to Foreign Countriesâ•… 67
E. State Incentives to Attract Foreign Businessâ•… 68
x Detailed Table of Contents

F. Sister-╉City Relationships╅ 68
G. State Foreign Policy Statementsâ•… 69
H. State Economic Sanctions and Trade Bansâ•… 70
I. “Buy American” Requirementsâ•… 71
J. State Taxation of Foreign Businessesâ•… 72
K. State Restrictions on Immigrantsâ•… 72
L. State Regulatory Prohibitions and Restrictionsâ•… 73
V. Conclusion â•… 76
3. ╉Constitutional Methodology and the Role of the Courts 77
I. Constitutional Methodology â•… 78
II. The Role of the Courts â•… 81
4. ╉Dormant Foreign-╉Affairs Preemption 87
I. Introduction â•… 87
II. Origins â•… 92
A. Holmes v. Jennison (1840)â•… 92
B. United States v. Curtiss-╉Wright Export Corp. (1936)╅ 98
C. Clark v. Allen (1947)â•… 101
III. Invention of the Dormant Foreign-╉Affairs Doctrine 103
A. Zschernig v. Miller (1968) and Its Progenyâ•… 103
B. American Insurance Ass’n v. Garamendi (2003)â•… 121
IV. Assessment â•… 129
A. Federal Exclusivityâ•… 130
1. Per Se Federal Exclusivityâ•… 131
2. Balancing Testsâ•… 133
B. Judicial Abstentionâ•… 135
C. Alternative Limiting Principlesâ•… 137
1. State Motiveâ•… 138
2. State Negotiation with a Foreign Governmentâ•… 138
3. Sitting in Judgment on a Foreign Governmentâ•… 140
4. Challenges to Federal National Security Policyâ•… 141
5. Traditional State Competenceâ•… 142
V. Conclusion â•… 144
5. ╉Dormant Foreign Commerce Preemption 147
I. Evolution of the Dormant Interstate Commerce Clause â•… 151
A. From Gibbons to Blackbird Creekâ•… 151
 Detailed Table of Contents xi

B. The Rise and Fall of the Cooley Doctrinesâ•… 154

C. The Modern Standard: Philadelphia v. New Jersey and Pike
v. Bruce Churchâ•… 158
D. The Market Participant Exception to the Dormant Commerce
Clauseâ•… 160
II. Origins and Development of the Dormant Foreign
Commerce Clause â•… 162
A. Japan Line, Ltd. v. County of Los Angeles (1979)â•… 163
B. Barclays Bank PLC v. Franchise Tax Board (1994)â•… 166
C. National Foreign Trade Council v. Natsios (1994)â•… 167
D. The Market Participant Exception to the Dormant Foreign
Commerce Clauseâ•… 168
III. Assessment â•… 171
Synthesizing and Simplifying Dormancy Standardsâ•… 177
6. ╉The Treaty Power 185
I. Introduction â•… 185
II. The Treaty Clause Versus the Tenth Amendment? 189
III. Deciphering Holmes’s Cryptic Opinion in Holland â•… 193
A. The Textual Rationaleâ•… 194
B. The Force of Functionalism and Adaptivism in Hollandâ•… 196
1. How Holmes Framed the Constitutional
Question—╉And Whyâ•… 196
2. Holland’s Functionalist Rationaleâ•… 199
3. The Andrews Analogyâ•… 200
C. An Anachronism?â•… 203
IV. How Bond Hobbled Holland â•… 205
A. The Court’s Attempt to Sidestep Hollandâ•… 206
B. Why the Court’s Attempt to Sidestep Holland Failedâ•… 208
1. The Neglect of Holland’s Own Federalism Principlesâ•… 208
2. Holland’s Uniform Standard: Treaties and Implementing
Legislationâ•… 209
3. The Unavoidable Conflict Between Holland and Bondâ•… 212
4. Bond’s Misguided “Background Principle”â•… 213
5. Carey v. South Dakota: The Constitutional Avoidance
Canon in Contextâ•… 218
xii Detailed Table of Contents

V. Critiques of Holland: Theory and Practice â•… 220

A. Before Bond: States’ Rights, Individual Rights, and the Lessons of
History, Experience, and Jurisprudenceâ•… 221
B. The Political and Legal Limits of Hollandâ•… 225
1. Political Constraints: A Short, Not-╉So-╉Horrible
Paradeâ•… 225
2. Legal Constraints: The Scope of Hollandâ•… 228
VI. Holland and the Modern Law of Treaties â•… 234
A. After Bond: The Treaty Power and Federalism in Contemporary
Perspectiveâ•… 234
B. What the Future Holdsâ•… 236
C. The Postwar Revolution of Treaty Lawâ•… 237
D. Medellín’s New Incoherenceâ•… 239
E. U.S. Treaty Practice After Bondâ•… 243
VII. Conclusion â•… 244
7. ╉Federal Common Law and State Power 247
I. Introduction: Federal Common Law’s Status and Legitimacy â•… 247
A. The Act of State Doctrineâ•… 251
B. Customary International Lawâ•… 253
II. What is Customary International Law? â•… 256
Where Does Customary International Law Fit into U.S. Federal
and State Law?â•… 258
III. Which Rules of Customary International Law Apply? â•… 264
Federal—╉or State—╉Common Law?â•… 271
IV. Assessment â•… 272
8. ╉Federal Approval: The Compact Clause 277
I. From the Clear to the Unclear â•… 278
II. Contemporary Practice â•… 279
III. The Problem Fades â•… 283
IV. States’ Rights and the Compact Clause â•… 287
V. Assessment â•… 289
9. ╉Federal Disapproval: Preemption 291
I. Preemption of State Law by Federal Statute â•… 294
A. Crosby v. National Foreign Trade Council (2000)â•… 296
B. Immigrationâ•… 300
 Detailed Table of Contents xiii

II. Preemption of State Law by Treaty â•… 307

III. Preemption of State Law by Executive Agreement â•… 309
A. Judicial Precedentsâ•… 312
B. Analytic Optionsâ•… 314
IV. Assessment â•… 315
10.╇╉A Case Study: States as Cyber-╉Defenders 319
I. The Growing Threat from Cyber-╉Intrusions ╅ 321
II. The Weakness of International Law â•… 324
III. The Crazy Quilt of Federal Statutory Law â•… 326
IV. The States Step into the Void â•… 332
V. The Lawfulness of State Data Protection Initiatives â•… 336
A. International Legal Concernsâ•… 336
B. Retaliationâ•… 339
C. Massachusetts Legal Concernsâ•… 339
D. Federal Constitutional Concernsâ•… 342
E. Due Processâ•… 342
F. Preemptionâ•… 343
G. The Dormant Foreign Affairs Powerâ•… 344
H. The Dormant Foreign Commerce Clauseâ•… 344
I. The Market Participant Doctrineâ•… 345
VI. An Opening for State Entrepreneurship? â•… 347
11.╇╉Conclusion 351
I. Summary â•… 351
II. Foreign Affairs Federalism in Other Nations â•… 360
A. Switzerlandâ•… 362
B. Canadaâ•… 364
C. Germanyâ•… 365
D. Indiaâ•… 366
III. Making Versus Interpreting a Constitution â•… 368

Table of Cases 371

Index 385
 Preface

foreign affairs federalism refers to the constitutional allocation of

foreign affairs powers between the federal government and the states. The pur-
pose of this book is twofold. The first is to explain the current law clearly and
accessibly. We identify those areas where the law can be ascertained with confi-
dence, and, where it cannot be, we suggest what we regard as the most plausible
or compelling perspectives on existing doctrine. The second is to appraise existing
doctrine against the background of the diverse and at times incompatible goals
of—╉as well as challenges facing—╉the United States in the twenty-╉first century.
One objective of this book is to highlight three pervasive myths about foreign
affairs federalism. The first myth afflicts federalism in constitutional discourse
generally but has special force in the realm of foreign affairs: that federalism has a
particular political valence. It is commonly thought that more state power means
more conservative policies and that less state power (or more federal power)
means more liberal policies. The second myth is that a meaningful distinction
can be drawn between domestic and foreign affairs. The third myth, related to the
second, is that the realm of foreign affairs is, and should be, exclusively federal.
Whatever kernel of truth these myths may have held in the past, they do not
accurately describe the state of affairs in the United States in the twenty-╉first cen-
tury. Nor, we suggest, is this cause for regret.
The idea that “states’ rights” means conservative politics originated in the mid-╉
nineteenth century. The Civil War took place within the context of a quintes-
sential liberal-╉conservative divide over slavery. The federal government sought
to preserve national political union in the face of the alleged right to secede on
which the eleven states constituting the Confederacy insisted. A century later,
especially in the 1950s and 1960s, a similar federal-╉state divide not only persisted
but took on a reinvigorated prominence in the politics of the era. Governmental
opposition to the civil rights movement emanated largely from states, cities,
school boards, and other local government institutions. Battles over issues such
as school desegregation and integrated public transportation, housing, and din-
ing facilities were waged primarily by state against federal authorities, although
xvi Preface

of course recalcitrant states also sought to influence these battles through a small
but vocal group of congressional representatives. Today, the myth that state con-
trol equates with conservative—​and federal with liberal—​political causes is rein-
forced by state efforts to curtail illegal immigration, deny homosexuals the right
to marry, limit abortion rights, and implement similar policies.
Reality, however, is far more complex. State governments span the liberal-​
conservative spectrum. Many recent state initiatives, particularly in the realm
of foreign affairs, have been more liberal than anything emerging from inside
the beltway. States have limited greenhouse gas emissions consistent with the
Kyoto Protocol,1 despite the Senate’s refusal to approve the Protocol. Cities have
declared themselves nuclear free zones or sanctuaries for illegal immigrants. Years
before the federal government passed the 1986 Comprehensive Anti-​Apartheid
Act,2 California and various localities nationwide stopped investing money from
state pension funds in apartheid South Africa.3 Massachusetts limited the author-
ity of its agencies to purchase goods and services from companies doing busi-
ness with the autocratic government of Myanmar (Burma) several months before
Congress enacted a federal law to similar effect. As discussed in Chapter 9, the
Supreme Court later found the Massachusetts statute preempted by federal law
under the Supremacy Clause.4
Other state and local actions that may touch upon foreign affairs have no
obvious conservative or liberal implications. One example is a California law
that required insurers doing business in that state to disclose information about
policies sold in Europe between 1920 and 1945. The Supreme Court struck down
this statute,5 too, although on far more questionable grounds, as discussed in

1. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec.
11, 1997, 37 I.L.M. 32 (1998) (entered into force Feb. 16, 2005). In 2006, for example, California
entered into a memorandum of understanding with the United Kingdom to limit emissions.
See Blair Signs Climate Pact with Schwarzenegger, The Guardian, Aug. 1, 2006, http://​
www.theguardian.com/​environment/​2006/​aug/​01/​greenpolitics.usnews. In 2015, eleven
U.S. states and foreign subnational governments, including California, Vermont, Oregon,
and Washington, and local governments in Canada, Germany, Brazil, and Mexico, agreed to
limit their emissions by 80 to 95 percent by 2050. See California, International Leaders Sign
Climate Change Agreement, Reuters, May 19, 2015, http://​uk.reuters.com/​article/​2015/​05/​
19/​us-​climate-​change-​agreements-​idUKKBN0O42IV20150519.
2. Comprehensive Anti-​Apartheid Act of 1986, Pub. L. No. 99-​440, 100 Stat. 1086 (1986).
3. See Bd. of Trustees of the Emps. Retirement Sys. v. Mayor of Baltimore City, 562 A.2d 720
(Md. 1989); Constitutionality of South African Divestment Statutes Enacted by State and
Local Governments, 10 U.S. Op. Off. Legal Counsel 49 (1986).
4. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).
5. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003).
 Preface xvii

Chapter 4. Beyond those cases involving state or local action in the realm of for-
eign affairs that have reached the courts, Chapter 2 canvasses a broad range of
state and local actions in foreign affairs and, in the process, refutes the claim that
states pursue either conservative or liberal policies in foreign affairs.
The second myth—​that we can readily distinguish domestic and foreign
affairs—​also originated early in U.S. constitutional history. From the outset,
federal practice under the new Constitution reflected this supposed distinction.
President George Washington appointed Thomas Jefferson as his secretary of
state and assigned him the task of handling international issues, and early in the
nineteenth century, the Senate established the Committee on Foreign Relations,
and the House of Representatives the Committee on Foreign Affairs. The sup-
position that there exists a neat distinction between domestic and foreign affairs,
although more defensible and doubtless expedient in 1789 and the early nine-
teenth century, regrettably persists today in the academy, politics, and govern-
ment. Dedicated specialist journals such as Foreign Affairs and International
Security inform the international cognoscenti of pioneering thought in the many
and diverse fields subsumed by the label “foreign affairs.” Leading academic insti-
tutions establish departments in the equally broad field of international relations,
which overlaps substantially with political science, law, economics, and numerous
other disciplines. Departments of international relations offer a wide variety of
popular courses to students captivated by the significance and seeming romance
of foreign studies and by the excitement of travel and study abroad programs. The
idea that international and domestic affairs are easily differentiated continues to
exercise a firm grip on intellectual and political life in the United States.
Here again, however, this assumption is a fiction. As early as 1974, long before
the emergence of “globalization” (a term we analyze in greater depth later), the esti-
mable former chairman of the Senate Foreign Relations Committee, J. William
Fulbright, noted the avalanche of commentary celebrating (or bemoaning) the
blurring of national boundaries. He remarked that “[i]‌t has ceased to be useful,
if it ever was, to deal with foreign policy as a category distinct from domestic
policy.”6 A moment’s reflection shows why. Consider the issue of economic assis-
tance to developing countries. Contrary to popular belief, most such assistance
is spent within the United States and measurably stimulates the U.S. economy.
Or consider arms sales to foreign countries. What may at first blush seem like a
paradigmatic foreign policy issue turns out to be much more complex. Arms sales
abroad fuel a massive domestic industry that provides skilled jobs to thousands of
Americans and exerts a nontrivial influence on the U.S. economy.

6. J. William Fulbright, What Is the National Interest?, The Ctr. Mag. 40, 41 ( Jan.–​Feb. 1974).
xviii Preface

Conversely, consider several putative local issues. Suppose that state or local
legislators decide that all students must pass a course in calculus to graduate from
high school. This requirement would directly affect the comparative prospects
for the American labor force in an intensely competitive global economy. Or con-
sider state healthcare requirements, which, notwithstanding the federal Patient
Protection and Affordable Care Act,7 remain robust and, so it would seem, fall
squarely within the province of traditional state laws governing domestic matters
such as the health, safety, and welfare of a state’s population. But state healthcare
requirements also add to the cost of products competing within global markets
and influence decisions by multinational businesses on where to establish their
headquarters or local offices. Or consider state privacy laws, which typically gov-
ern official authority to secretly record the telephone conversations (and, today,
also the emails and other forms of communication) of state residents. Increasingly,
many of those communications involve persons not only in other states but in for-
eign nations.
Finally, consider the weighty legal questions that vex the formulation of
counterterrorism strategy, which is surely, at first glance, a classic topic of foreign
rather than domestic policy. Flying an airplane into a building and killing three
thousand people is of course criminal. But by and large, it is criminal because
of state laws, which criminalize, among other conduct, murder and property
destruction. And those crimes were perpetrated against not only the U.S. citizens
killed or injured in the terrorist attacks of September 11, 2001, but also against
nearly four hundred foreign nationals from about eighty foreign countries.8 It is
not for nothing that the cabinet officer charged with principal responsibility for
counterterrorism policy is called the Secretary of Homeland Security. Nor is it
coincidental that a focal point of the debate on how to fight terrorism is whether
it is properly conceptualized as crime or war, as a responsibility of the military or
of law enforcement. International and domestic security turn out, in the end, to
be not all that different.
The third myth is related: that foreign policy is or should be, with a few minor
and inconsequential exceptions, exclusively federal. American lawyers internal-
ize this fiction first in law school. Law courses often draw an artificial distinc-
tion between state and federal law, even though the law in particular areas—​such
as corporate regulations and criminal prohibitions—​frequently overlaps and

7. Patient Protection and Affordable Care Act, Pub. L. No. 111-​148, 124 Stat. 119-​1025 (2010).
8. Gaby Leslie, Facts You Probably Didn’t Know about 9/​11, Yahoo News, Sept. 5, 2011,
https://​uk.news.yahoo.com/​ten-​interesting-​facts-​you-​probably-​didn%E2%80%99t-​know-​
about-​9-​11.html#AULg0J2.
 Preface xix

interacts. Relative to foreign affairs, in particular, few fictions become more firmly
implanted in the psyches of American lawyers, inculcated over the years by scores
of familiar ipse dixits of the Supreme Court and the popular media. Unexamined
dicta are repeated—​often acontextually—​from decisions dating back to the nine-
teenth century and continuing to the present. “It was one of the main objects of
the Constitution to make us, so far as regarded our foreign relations, one people,
one nation,” as the Court said in 1840.9 “For local interests the several states of
the union exist,” it said in 1889, but “for national purposes, embracing our rela-
tions with foreign nations, we are but one nation, one people, one power.”10
“[I]‌n respect of our foreign relations generally, state lines disappear,” it said in
1937. “As to such purposes the state … does not exist.”11 “Power over external
affairs is not shared with the States,” it said in 1942; “it is vested in the national
government exclusively.”12 And again, in 2012, the Court announced that “where
foreign affairs is at issue, the practical need for the United States to speak ‘with
one voice and ac[t] as one,’ is particularly important.”13 The popular media have
absorbed and often reiterate this myth. A 2012 New York Times editorial attacking
Arizona’s immigration law, for example, captured the popular understanding of
state competence in the constitutional scheme. “By the framers’ intent, foreign-​
policy making is entrusted to the federal government through presidential and
Congressional powers,” the Times opined. “That authority is exclusive, barring
any state intrusion.”14
These and other sweeping, absolutist pronouncements have only the flimsi-
est connection with what modern state and local governments actually do.15 The
Constitution empowers the federal government to exercise potentially plenary

9. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–​76 (1840).

10. The Chinese Exclusion Case, 130 U.S. 581, 606 (1889); cf. The Federalist No. 42, at
279 ( James Madison) ( Jacob E. Cooke ed., 1961) (“If we are to be one nation in any respect, it
clearly ought to be in respect to other nations.”).
11. United States v. Belmont, 301 U.S. 324, 331 (1937).
12. United States v. Pink, 315 U.S. 203, 233 (1942); see also Zschernig v. Miller, 389 U.S. 429, 442
(1968) (Stewart, J., concurring) (finding that provisions of Oregon law “launch the state upon
a prohibited voyage into a domain of exclusively federal competence”).
13. Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1438 (2012); see also Zivotofsky ex
rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).
14. An Invitation to Abuse and Chaos, N.Y. Times, Apr. 21, 2012, http://​www.nytimes.com/​
2012/​04/​22/​opinion/​sunday/​an-​invitation-​to-​abuse-​and-​chaos.html?_​r=0.
15. See Edward T. Swaine, Negotiating Federalism: State Bargaining and the Dormant Treaty
Power, 49 Duke L.J. 1127, 1134 (2000) (noting the “profound dissonance between theory and
practice”).
xx Preface

authority in foreign relations, but it does not contemplate exclusive authority

in this realm by default—​nor, as a practical matter, could it.16 The distinction is
crucial. The text of the Constitution often leaves decisions about the allocation
of foreign relations authority between the state and federal governments to the
latter’s discretion. But in the exercise of that discretion, the federal government
often does not, in fact, choose to exclude the states; concurrent authority is rela-
tively common. It is, of course, a truism that the Constitution vastly increased the
federal government’s powers in foreign relations as compared to the Articles of
Confederation, and as we discuss in Chapter 1, these changes were indispensable
to the resolution of some of the most serious defects in the Articles.17 But neither
the Framers nor the Constitution they painstakingly drafted proposed a rigid
division between the respective foreign affairs roles of the state and national gov-
ernments. Equally significant, categorical pronouncements such as those quoted
above ignore the real-​life day-​to-​day conduct of state and local governments. In
fact, state activities in the realm of foreign affairs have become so common as to
call to mind the old story of the preacher asked whether he believed in baptism by
immersion. “Believe in it?” he responded, “Hell, I’ve seen it!”
A survey of what states and cities actually do in the international realm will
be left to Chapter 2. Suffice it to say here that their foreign affairs initiatives are
frequent in number, broad in scope, and extensive in effect. To cite just a few
examples, states and cities have implemented unratified treaties (including
the Kyoto Protocol18 and the Convention on the Elimination of All Forms of
Discrimination Against Women19), taken stands on myriad foreign policy ques-
tions (from Vietnam to Nicaragua to the proposed nuclear weapons freeze),
concluded oil import agreements with foreign countries, established local offices
to represent them abroad,20 demanded that foreign corporations come up with

16. Jack Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1619
(1997).
17. Indeed, despite the Confederacy’s emphasis on the rights of its constituent states, “[e]‌ven
the Constitution of the Confederate States continued virtually the same limitations on the
states in regard to foreign relations as are in the United States Constitution.” Louis Henkin,
Foreign Affairs and the US Constitution 422 n.2 (2d ed. 1996). Compare U.S.
Const. art. I, § 10, with Confed. Const. art. I, § 10.
18. Judith Resnick et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and
Translocal Organizations of Government Actors, 50 Ariz. L. Rev. 709, 719 (2008).
19. Andrew Stelzer, Gender: For U.S., Lessons in CEDAW from San Francisco, Inter Press
Serv., Nov. 25, 2009, http://​www.ipsnews.net/​2009/​11/​gender-​for-​us-​lessons-​in-​cedaw-​from-​
san-​francisco/​.
20. See generally Earl Fry, The Expanding Role of State and Local Governments
in U.S. Foreign Affairs (2d ed. 1998).
 Preface xxi

comprehensive written plans to protect the personal data of state residents, and
used sister-​city relationships to advance human rights agendas abroad.21
At first blush, one might think state and city officials responsible for such
actions simply lack sufficient regard for the Constitution or knowledge of the
Supreme Court’s interpretation of it. But another—​and, we suggest, more
accurate—​interpretation would be that we are witnessing institutional gravity
in action as political water seeks its lowest point: these officials have been doing
what seems to them to be necessary or prudent for their localities, what their
constituents want—​and what Congress, after all, has seldom demanded that they
stop doing.
To be clear, we do not suggest that the states either do or should have carte
blanche to act in the realm of foreign policy—​even were this realm capable of
more precise demarcation. No one questions, for example, Congress’s authority
to preempt state initiatives by legislating within the scope of its Article I pow-
ers, including those foreign affairs powers it shares with the president. Nor does
anyone question executive authority to preempt state measures by the exercise
of those constitutional powers vested exclusively in the president by Article II.22
Similarly, valid treaties made by the president with the advice and consent of the
Senate may preempt state laws.23 And finally, all the familiar constitutional limits
on governmental power generally, including but not limited to those enumerated
in the Bill of Rights,24 limit what state governments may do internationally. We
discuss these limits in Chapter 9 and elsewhere as they arise.

21. As the book went to press, Tumwater, Washington, was considering whether to end a sister-​
city relationship because of anti-​homosexual laws in Uganda. Andy Hobbs, Tumwater Might
End Sister-​City Relationship with Ugandan Town, Seattle Times, May 17, 2014, http://​
seattletimes.com/​html/​localnews/​2023610754_​tumwatersistercityxml.html. See also Brandon
Howell, Lansing Council Votes to End St. Petersburg, Russia Sister City Relationship over Gay
Rights Violations, Mich. Live, Aug. 12, 2013, lansing_​council_​votes_​to_​end_​st_​petersburg_​
russia_​sister_​city_​ties_​over_​gay_​rights_​violations.
22. The scope of the “executive power,” U.S. Const. art. II, § 1, remains a source of continuing
controversy. Compare Saikrishna B. Prakash & Michael D. Ramsay, The Executive Power over
Foreign Affairs, 111 Yale L.J. 231 (2001), with Curtis A. Bradley & Martin S. Flaherty, Executive
Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).
23. See U.S. Const. art. II, § 2, cl. 2.; id. art. VI, cl. 2. That said, renewed controversy over the
scope of the treaty power in the context of federalism, culminating in the Supreme Court’s
recent decision in Bond v. United States, 134 S. Ct. 2077 (2014), persists. We discuss Bond in
Chapter 6. The extent to which the president may validly preempt state law by entering into
a sole executive agreement—​or indeed, perhaps even by merely expressing a federal policy or
preference on a particular issue, see American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003),
also remains the subject of vigorous debate. See Chapter 4.
24. Cf. Reid v. Covert, 354 U.S. 1 (1957).
xxii Preface

Yet in recent years, the Supreme Court has not honored the long-​standing
presumption against preemption. We will suggest that preemption ought to be
applied more narrowly than it has been in recent foreign-​affairs federalism cases.
We will also suggest that the Court ought not overturn what states do within
the international realm—​as it has recently—​under the guise of enforcing an ill-​
conceived dormant foreign-​affairs doctrine. Nor should it routinely invoke a
broad conception of the dormant Foreign Commerce Clause to preempt state
commercial regulations. We discuss these issues in Chapters 4 and 5, respectively.
Perhaps, at the extreme margins, the Court should properly police these judg-
ments in unusual cases that arise in unforeseeable circumstances and in the face
of congressional and presidential silence. But as a rule, settled constitutional prin-
ciples allocate such decisions to the political branches of the federal and state
governments. We should be leery of giving the judiciary power to adjudicate the
allocation of foreign affairs authority as between the federal and state govern-
ments under indeterminate or vague standards, because in so doing, even with
the best of intentions, courts too often wander out of their lane. The difficulty in
distinguishing foreign from domestic affairs, as others have pointed out, could
subject virtually any state law to judicial invalidation, resulting in a massive trans-
fer of lawmaking power to the federal courts at the expense of the states.25 The
Court ought to decide these and other foreign affairs questions, not by giving
controlling force to factitious distinctions—​such as the notion that state activi-
ties can be classified as inherently international or domestic—​but by consider-
ing, at the outset, whether as a practical matter the activity can and should be
judicially controlled in a consistent and principled fashion.26 A paramount objec-
tive, we suggest, should be to simplify constitutional analysis—​to provide greater
predictability, giving everyone who cares as much notice as possible about what’s
permissible and what’s not.
It may sound as though this book will be yet another conceit that the Supreme
Court would do a better job if only the courts heeded the advice of law profes-
sors. We hope it will not be. Much of the book is devoted simply to exposition
of existing legal doctrine. It is an effort, above all, to explore and clarify what the
law of foreign affairs federalism is in the early twenty-​first century. Only then do
we offer, we hope with due modesty, arguments and tentative suggestions about
how the law might be refined for the better. But understanding the law—​its ori-
gins, limits, evolution, and rationales—​is a necessary first step in any informed

25. See Jack Goldsmith, Statutory Foreign Affairs Preemption, 2001 Sup. Ct. Rev. 175 (2001).
26. Cf. United States v. Lopez, 514 U.S. 549, 615 (Breyer, J., dissenting).
 Preface xxiii

critique of where it arguably went wrong or how it might be improved. At any

rate, we expect that many readers seek, first and foremost, not a polemical blue-
print for how the law should be changed, but a clear understanding of what the
law currently permits and prohibits—​and what remains unclear. It is chiefly for
these readers—​including state and federal legislators and their staffs, city coun-
cil members, state and federal lawyers, corporate counsel facing regulatory issues,
judges, and students of the Constitution trying to sort it all out—​that this book
is written.
 Acknowledgments

we are indebted to a number of individuals and organizations for help in

preparing this book. Matthew Hoisington, Julie Krosnicki, Angela Linhardt,
Robert Konkel, Margot Marston, Seth Pate, Emma Wright, Jonathan Hempton,
Shea Miller, Ashley Novak, Jaclyn Reinhart, and Christopher Walczyszyn gave
unstintingly of time and talent in providing research assistance. Thanks also to
Gary Lawson and Mike Dorf for helpful comments on Chapter 6. Chapter 10
is reprinted with the permission of the Policy Review, in which an earlier version
appeared as “State-╉Level Cybersecurity” in February/╉March 2012. That article
was supported by a grant from the Hitachi Foundation. Chapter 6 is reprinted
with the permission of the Yale Journal of International Law, in which an ear-
lier version appeared as “The Sad, Quiet Death of Missouri v. Holland: How
Bond Hobbled the Treaty Power,” Originally published by The Yale Journal of
International Law, Vol. 41 (2016).
Mostly, we are indebted to our families, whose support and understanding
made this book possible, and to whom it is dedicated.
 1

Why Empower States?

why have states ? Most nations don’t. Chile, the People’s Republic of
China, France, Greece, Israel, Japan, the Netherlands, Spain, Sweden, and Turkey,
among others, do not. Their national authorities govern their respective nations
as a unit. Those nations generally manage just fine; to the extent they don’t, the
fault seldom lies with their unitary models of governance. In contrast, the United
States is one of a handful of federal nations. Others include Australia, Brazil,
Canada, Germany, India, Mexico, Russia, and Switzerland. Federal nations com-
prise a federation of states,1 local polities within the nation differentiated by terri-
torial boundaries within which they exercise a degree of political autonomy from
the national government.
Some of the Framers of the Constitution and their countrymen appar-
ently believed that they were the first free agents to design a new government.
John Adams, for example, captured this shared sense of good fortune when he
remarked, “You and I, my dear friend, have been sent into life at a time when the
greatest lawgivers of antiquity would have wished to live.”2 “In no age before,”
wrote one American historian in 1789, “in no other country, did man ever possess
an election of the kind of government under which he would choose to live.”3
Earlier free governments, he wrote, had been “thrown together by accident.”4 In

1.╇ The nomenclature differs among countries. Local polities within a nation may be called
provinces, cantons, Länders, oblasts, or otherwise. Even within the United States, some
states—╉Massachusetts, Kentucky, Virginia, and Pennsylvania—╉ choose to self-╉
identify as
“commonwealths.”
2.╇ John Adams, Thoughts on Government, The John Harvard Library (Pamphlet No. 65) 27
(1776), quoted in Bernard Bailyn, The Ideological Origins of the American
Revolution 273 n.39 (1967).
3.╇1 David Ramsay, History of the American Revolution 356 (1789).
4.╇ Id. at 31.
2 Foreign Affair s Feder alism

the United States alone would free men, guided by the lodestars of reason, his-
tory, and experience, self-╉consciously design the architecture of their government.
Whatever kernel of truth these sentiments may contain, the reality is that both
pre-╉and post-╉Revolutionary political history limited the potential forms that
the government could take. No one seriously believed that the new nation, the
“united States,” could establish a national government that did not share politi-
cal power with the states. The reason is obvious: states had existed for decades,
some for more than a century. They were hardly inclined to relinquish all of their
authority to a national government. To ask whether the United States would have
been better off as a unitary nation is academic. A United States without states is
almost as implausible today as it was to the Framers.
The policy rationales for states must therefore be understood largely as post
hoc justifications. The Framers and their countrymen did not choose to create a
federal nation comprised of thirteen states; it could hardly have been otherwise.
Still, the rationales for federalism matter. The Framers, the judiciary, political theo-
rists, and others have suggested various rationales for a nation constituted by states,
often extolling federalism’s political virtues. The real questions, today as in the past,
concern how much and what kind of authority the states should exercise. Should
twenty-╉first century states become little more than geographic subdivisions of the
United States, primarily of interest to Google Maps? Presumably not. These are
the questions that make it worthwhile, indeed necessary, to consider the rationales
for federalism today—╉in foreign, no less than domestic, affairs. If the rationales for
federalism remain compelling, if the benefits of states outweigh their costs, then
a stronger state role in general, and in the realm of foreign affairs in particular,
may be warranted. If federalism’s rationales now seem dubious or anachronistic, if
few reasons beyond historical sentimentality exist for federalism, then it may make
more sense to lodge broader foreign-╉affairs powers in the federal government.
This chapter thus begins by exploring federalism’s origins in the United States.
It analyzes how the Constitution’s text reflects principles of federalism. And it
applies those principles to assess the cogency of federalism’s policy rationales in
the context of foreign affairs.

I.╇ The Origins of American Federalism

Many Americans do not know it, but the Constitution is the second foundational
charter of the United States. The first, the Articles of Confederation, didn’t work.
For eight years (1781–╉1789), the Articles technically5 constituted the national

5.╇ “Technically”—╉because the operation of both the national and state governments during
these years hardly conformed to the blueprint established by the Articles.
Another random document with
no related content on Scribd:
 “A photograph?” Pauline said. “No; I don’t think I’ve seen a
photograph.”
“Ah, you wouldn’t have a photograph of me that’s not a good
many years’ old. It was a good deal before your time.”
With her head full of the possibilities of her husband’s past, for
she couldn’t tell that there mightn’t have been another, Pauline said,
with her brave distinctness:
“Are you, perhaps, the person who rang up 4,259 Mayfair? If
you are ...”
The stranger’s rather regal eyes opened slightly. She was
leaning one arm on the chimney-piece and looking over her
shoulder, but at that she turned and held out both her hands.
“Oh, my dear,” she said, “it’s perfectly true what he said. You’re
the bravest woman in the world, and I’m Katya Lascarides.”
With the light full upon her face, Pauline Leicester hardly stirred.
“You’ve heard all about me,” she said, with a touch of sadness in
her voice, “from Robert Grimshaw?”
“No, from Ellida,” Katya answered, “and I’ve seen your
photograph. She carries it about with her.”
Pauline Leicester said, “Ah!” very slowly. And then, “Yes; Ellida’s
very fond of me. She’s very good to me.”
“My dear,” Katya said, “Ellida’s everything in the matter. At any
rate, if I’m going to do you any good, it’s she that’s got me here. I
shouldn’t have done it for Robert Grimshaw.”
Pauline turned slightly pale.
“You haven’t quarrelled with Robert?” she said. “I should be so
sorry.”
“My dear,” Katya answered, “never mention his name to me
again. It’s only for you I’m here, because what Ellida told me has
made me like you;” and then she asked to see the patient.
 Dudley Leicester, got into evening dress as he was by Saunders
and Mr. Held every evening, sat, blond and healthy to all seeming,
sunk in the eternal arm-chair, his fingers beating an eternal tattoo,
his eyes fixed upon vacancy. His appearance was so exactly natural
that it was impossible to believe he was in any “condition” at all. It
was so impossible to believe it that when, with a precision that
seemed to add many years to her age, Katya Lascarides
approached, and, bending over him, touched with the tips of her
fingers little and definite points on his temples and brows, touching
them and retouching them as if she were fingering a rounded wind-
instrument, and that, when she asked: “Doesn’t that make your head
feel better?” it seemed merely normal that his right hand should
come up from the ceaseless drumming on the arm of the chair to
touch her wrist, and that plaintively his voice should say: “Much
better; oh, much better!”
And Pauline and Mr. Held said simultaneously: “He isn’t ...”
“Oh, he isn’t cured,” Katya said. “This is only a part of the
process. It’s to get him to like me, to make him have confidence in
me, so that I can get to know something about him. Now, go away. I
can’t give you any verdict till I’ve studied him.”
 PART V

IN the intervals of running from hotel to hotel—for Robert Grimshaw

had taken it for granted that Ellida was right, and that Katya had
gone either to the old hotel where she had stayed with Mrs. Van
Husum, and where they knew she had left the heavier part of her
belongings—Robert Grimshaw looked in to tell Pauline that he hadn’t
yet been able to fix things up with Katya Lascarides, but that he was
certainly going to do so, and would fetch her along that afternoon. In
himself he felt some doubt of how he was going to find Katya. At the
Norfolk Street hotel he had heard that she had called in for two or
three minutes the night before in order to change her clothes—he
remembered that she was wearing her light grey dress and a linen
sun-hat—and that then she had gone out, saying that she was going
to a patient’s, and might or might not come back.
“This afternoon,” he repeated, “I’ll bring her along.”
Pauline looked at his face attentively.
“Don’t you know where she is?” she said incredulously, and then
she added, as if with a sudden desolation: “Have you quarrelled as
much as all that?”
“How did you know I don’t know where she is?” Grimshaw
answered swiftly. “She hasn’t been attacking you?”
Her little hands fell slowly open at her sides; then she rested
one of them upon the white cloth that was just being laid for lunch.
The horn of an automobile sounded rather gently outside, and
the wheels of a butcher’s cart rattled past.
 “Oh, Robert,” she said suddenly, “it wasn’t about me you
quarrelled? Don’t you understand she’s here in the house now? That
was Sir William Wells who just left.”
“She hasn’t been attacking you?” Grimshaw persisted.
“Oh, she wouldn’t, you know,” Pauline answered. “She isn’t that
sort. It’s you she would attack if she attacked anybody.”
“Oh, well, yes,” Robert Grimshaw answered. “It was about you
we quarrelled—about you and Dudley, about the household: it
occupies too much of my attention. She wants me altogether.”
“Then what’s she here for?” Pauline said.
“I don’t know,” Grimshaw said. “Perhaps because she’s sorry for
you.”
“Sorry for me!” Pauline said, “because I care.... But then she ...
Oh, where do we stand?”
“What has she done?” Robert Grimshaw said. “What does she
say?”
“About you?” Pauline said.
“No, no—about the case?”
“Oh,” Pauline said, “she says that if we can only find out who it
was rang up that number it would be quite likely that we could cure
him.”
Grimshaw suddenly sat down.
“That means ...” he said, and then he stopped.
Pauline said: “What? I couldn’t bear to cause her any
unhappiness.”
“Oh,” Robert Grimshaw answered, “is that the way to talk in our
day and—and—and our class? We don’t take things like that.”
“Oh, my dear,” she said painfully, “how are we taking this?” Then
she added: “And in any case Katya isn’t of our day or our class.”
She came near, and stood over him, looking down.
 “Robert,” she said gravely, “who is of our day and our class? Are
you? Or am I? Why are your hands shaking like that, or why did I just
now call you ‘my dear’? We’ve got to face the fact that I called you
‘my dear.’ Then, don’t you see, you can’t be of our day and our class.
And as for me, wasn’t it really because Dudley wasn’t faithful to me
that I’ve let myself slide near you? I haven’t made a scandal or any
outcry about Dudley Leicester. That’s our day and that’s our class.
But look at all the difference it’s made in our personal relations! Look
at the misery of it all! That’s it. We can make a day and a class and
rules for them, but we can’t keep any of the rules except just the
gross ones like not making scandals.”
“Then, what Katya’s here for,” Robert Grimshaw said, “is to cure
Dudley. She’s a most wonderful sense, and she knows that the only
way to have me altogether is to cure him.”
“Oh, don’t put it as low down as that,” Pauline said. “Just a little
time ago you said that it was because she was sorry for me.”
“Yes, yes,” Grimshaw answered eagerly; “that’s it; that’s the
motive. But it doesn’t hinder the result from being that, when
Dudley’s cured, we all fly as far apart as the poles.”
“Ah,” she said slowly, and she looked at him with the straight,
remorseless glance and spoke with the little, cold expressionless
voice that made him think of her for the rest of his life as if she were
the unpitying angel that barred for our first parents the return into
Eden, “you see that at least! That is where we all are—flying as far
apart as the poles.”
Grimshaw suddenly extended both his hands in a gesture of
mute agony, but she drew back both her own.
“That again,” she said, “is our day and our class. And that’s the
best that’s to be said for us. We haven’t learned wisdom: we’ve only
learned how to behave. We cannot avoid tragedies.”
She paused and repeated with a deeper note of passion than he
had ever heard her allow herself:
“Tragedies! Yes, in our day and in our class we don’t allow
ourselves easy things like daggers and poison-bowls. It’s all more
difficult. It’s all more difficult because it goes on and goes on. We
think we’ve made it easier because we’ve slackened old ties. You’re
in and out of the house all day long, and I can go around with you
everywhere. But just because we’ve slackened the old ties, just
because marriage is a weaker thing than it used to be—in our day
and in our class”—she repeated the words with deep bitterness and
looked unflinchingly into his eyes—“we’ve strengthened so
immensely the other kind of ties. If you’d been married to Miss
Lascarides you’d probably not have been faithful to her. As it is, just
because your honour’s involved you find yourself tied to her as no
monk ever was by his vow.”
She looked down at her feet and then again at his eyes, and in
her glance there was a cold stream of accusation that appeared
incredible, coming from a creature so small, so fragile, and so
reserved. Grimshaw stood with his head hanging forward upon his
chest: the scene seemed to move with an intolerable slowness, and
to him her attitude of detachment was unspeakably sad. It was as if
she spoke from a great distance—as if she were a ghost fading
away into dimness. He could not again raise his hands towards her:
he could utter no endearments: her gesture of abnegation had been
too absolute and too determined. With her eyes full upon him she
said:
“You do not love Katya Lascarides: you are as cold to her as a
stone. You love me, and you have ruined all our lives. But it doesn’t
end, it goes on. We fly as far asunder as the poles, and it goes on for
good.”
She stopped as suddenly as she had begun to speak, and what
she had said was so true, and the sudden revelation of what burned
beneath the surface of a creature so small and apparently so cold—
the touch of fierce hunger in her voice, of pained resentment in her
eyes—these things so overwhelmed Robert Grimshaw that for a long
time, still he remained silent. Then suddenly he said:
“Yes; by God, it’s true what you say! I told Ellida long ago that
my business in life was to wait for Katya and to see that you had a
good time.” He paused, and then added quickly: “I’ve lived to see
you in hell, and I’ve waited for Katya till”—he moved one of his
hands in a gesture of despair—“till all the fire’s burned out,” he
added suddenly.
“So that now,” she retorted with a little bitter humour, “what
you’ve got to do is to give Katya a good time and go on waiting for
me.”
“Till when?” he said with a sudden hot eagerness.
“Oh,” she said, “till all the ships that ever sailed come home; till
all the wild-oats that were ever sown are reaped; till the sun sets in
the east and the ice on the poles is all melted away. If you were the
only man in all the world, my dear, I would never look at you again.”
Grimshaw looked at the ground and muttered aimlessly:
“What’s to be done? What’s to be done?”
He went on repeating this like a man stupified beyond the power
of speech and thought, until at last it was as if a minute change of
light passed across the figure of Pauline Leicester—as if the
softness faded out of her face, her colour and her voice, as if, having
for that short interval revealed the depths of her being, she had
closed in again, finally and irrevocably. So that it was with a sort of
ironic and business-like crispness that she said:
“All that’s to be done is the one thing that you’ve got to do.”
“And that?” Robert Grimshaw asked.
“That is to find the man who rang up that number. You’ve got to
do that because you know all about these things.”
“I?” Robert Grimshaw said desolately. “Oh yes, I know all about
these things.”
“You know,” Pauline continued, “she’s very forcible, your Katya.
You should have seen how she spoke to Sir William Wells, until at
last he positively roared with fury, and yet she hadn’t said a single
word except, in the most respectful manner in the world, ‘Wouldn’t it
have been best the very first to discover who the man on the
telephone was?”
 “How did she know about the man on the telephone?” Grimshaw
said. “You didn’t. Sir William told me not to tell you.”
“Oh, Sir William!” she said, with the first contempt that he had
ever heard in her voice. “He didn’t want anybody to know anything.
And when Katya told him that over there they always attempt to cure
a shock of that sort by a shock almost exactly similar, he simply
roared out: ‘Theories! theories! theories!’ That was his motor that
went just now.”
They were both silent for a long time, and then suddenly Robert
Grimshaw said:
“It was I that rang up 4,259 Mayfair.”
Pauline only answered: “Ah!”

And looking straight at the carpet in front of him, Robert

Grimshaw remembered the March night that had ever since weighed
so heavily on them all. He had dined alone at his club. He had sat
talking to three elderly men, and, following his custom, at a quarter
past eleven he had set out to walk up Piccadilly and round the acute
angle of Regent Street. Usually he walked down Oxford Street, down
Park Lane; and so, having taken his breath of air and
circumnavigated, as it were, the little island of wealth that those four
streets encompass, he would lay himself tranquilly in his white bed,
and with Peter on a chair beside his feet, he would fall asleep. But
on that night, whilst he walked slowly, his stick behind his back, he
had been almost thrown down by Etta Stackpole, who appeared to
fall right under his feet, and she was followed by the tall form of
Dudley Leicester, whose face Grimshaw recognized as he looked up
to pay the cabman. Having, as one does on the occasion of such
encounters, with a military precision and an extreme swiftness
turned on his heels—having turned indeed so swiftly that his stick,
which was behind his back, swung out centrifugally and lightly struck
Etta Stackpole’s skirt, he proceeded to walk home in a direction the
reverse of his ordinary one. And at first he thought absolutely nothing
at all. The night was cold and brilliant, and he peeped, as was his
wont, curiously and swiftly into the faces of the passers-by. Just
about abreast of Burlington House he ejaculated: “That sly cat!” as if
he were lost in surprised admiration for Dudley Leicester’s
enterprise. But opposite the Ritz he began to shiver. “I must have
taken a chill,” he said, but actually there had come into his mind the
thought—the thought that Etta Stackpole afterwards so furiously
upbraided him for—that Dudley Leicester must have been carrying
on a long intrigue with Etta Stackpole. “And I’ve married Pauline to
that scoundrel!” he muttered, for it seemed to him that Dudley
Leicester must have been a scoundrel, if he could so play fast and
loose, if he could do it so skilfully as to take in himself, whilst
appearing so open about it.
And then Grimshaw shrugged his shoulders: “Well, it’s no
business of mine,” he said.
He quickened his pace, and walked home to bed; but he was
utterly unable to sleep.
Lying in his white bed, the sheets up to his chin, his face dark in
the blaze of light, from above his head—the only dark object, indeed,
in a room that was all monastically white—his tongue was so dry that
he was unable to moisten his lips with it. He lay perfectly still, gazing
at Peter’s silver collar that, taken off for the night, hung from the
hook on the back of the white door. His lips muttered fragments of
words with which his mind had nothing to do. They bubbled up from
within him as if from the depths of his soul, and at that moment
Robert Grimshaw knew himself. He was revealed to himself for the
first time by words over which he had no control. In this agony and
this prickly sweat the traditions—traditions that are so infectious—of
his English public-school training, of his all-smooth and suppressed
contacts in English social life, all the easy amenities and all the facile
sense of honour that is adapted only to the life of no strain, of no
passions; all these habits Were gone at this touch of torture. And it
was of this intolerably long anguish that he had been thinking when
he had said to Etta Stackpole that in actual truth he was only a
Dago. For Robert Grimshaw, if he was a man of many knowledges,
was a man of no experiences at all, since his connection with Katya
Lascarides, her refusal of him, her shudderings at him, had been so
out of the ordinary nature of things that he couldn’t make any
generalizations from them at all. When he had practically forced
Dudley Leicester upon Pauline, he really had believed that you can
marry a woman you love to your best friend without enduring all the
tortures of jealousy. This sort of marriage of convenience that it was,
was, he knew, the sort of thing that in their sort of life was frequent
and successful enough, and having been trained in the English code
of manners never to express any emotion at all, he had forgotten
that he possessed emotions. Now he was up against it.
He was frightfully up against it. Till now, at least, he had been
able to imagine that Dudley Leicester had at least a devouring
passion for, a quenchless thirst to protect, his wife. It had been a
passion so great and commencing so early that Grimshaw could
claim really only half the credit of having made the match. Indeed,
his efforts had been limited to such influence as he had been able to
bring to bear upon Pauline’s mother, to rather long conversations in
which he had pointed out how precarious, Mrs. Lucas being dead,
would be Pauline’s lot in life. And he had told her at last that he
himself was irretrievably pledged, both by honour and by passion, to
Katya Lascarides. It was on the subsequent day that Pauline had
accepted her dogged adorer.
His passion for Katya Lascarides! He hadn’t till that moment had
any doubt about it. But by then he knew it was gone; it was dead,
and in place of a passion he felt only remorse. And his longing to be
perpetually with Pauline Leicester—as he had told Ellida Langham—
to watch her going through all her life with her perpetual tender
smile, dancing, as it were, a gentle and infantile measure; this, too,
he couldn’t doubt. Acute waves of emotion went through him at the
thought of her—waves of emotion so acute that they communicated
themselves to his physical being, so that it was as if the thought of
Katya Lascarides stabbed his heart, whilst the thought of Pauline
Leicester made his hands toss beneath the sheets. For, looking at
the matter formally, and, as he thought, dispassionately, it had
seemed to him that his plain duty was to wait for Katya Lascarides,
and to give Pauline as good a time as he could. That Pauline would
have this with Dudley Leicester he hadn’t had till the moment of the
meeting in Regent Street the ghost of a doubt, but now ...
 He said: “Good God!” for he was thinking that only the Deity—if
even He—could achieve the impossible, could undo what was done,
could let him watch over Pauline, which was the extent of the
possession of her that he thought he desired, and wait for Katya,
which also was, perhaps, all that he had ever desired to do. The
intolerable hours ticked on. The light shone down on him beside the
bed. At the foot Peter slept, coiled up and motionless. At the head
the telephone instrument, like a gleaming metal flower, with its nickel
corolla and black bell, shone with reflected light. He was accustomed
on mornings when he felt he needed a rest to talk to his friends from
time to time, and suddenly his whole body stirred in bed. The whites
of his eyes gleamed below the dark irises, his white teeth showed,
and as he clasped the instrument to him he appeared, as it were, a
Shylock who clutched to his breast his knife and demanded of the
universe his right to the peace of mind that knowledge at least was
to give him.
He must know; if he was to defend Pauline, to watch over her, to
brood over her, to protect her, he must know what was going on.
This passionate desire swept over him like a flood. There remained
nothing else in the world. He rang up the hotel which, tall, white, and
cold, rises close by where he had seen Etta Stackpole spring from
the cab. He rang up several houses known to him, and, finally, with a
sort of panic in his eyes he asked for Lady Hudson’s number. The
little dog, aroused by his motions and his voice, leapt on to the bed,
and pattering up, gazed wistfully at his face. He reached out his
tongue to afford what consolation he could to the master, whom he
knew to be perturbed, grieved, and in need of consolation, and just
before the tinny sound of a voice reached Grimshaw’s ears
Grimshaw said, his lips close to the mouthpiece, “Get down.” And
when, after he had uttered the words, “Isn’t that Dudley Leicester
speaking?” there was the click of the instrument being rung off,
Robert Grimshaw said to himself grimly, “At any rate, they’ll know
who it was that rung them up.”
But Dudley Leicester hadn’t known; he was too stupid, and the
tinny sound of the instrument had destroyed the resemblance of any
human voice.
 Thus, sitting before Pauline Leicester in her drawing-room, did
Robert Grimshaw review his impressions. And, looking back on the
whole affair, it seemed to present himself to him in those terms of
strong light, of the unreal sound of voices on the telephone, and of
pain, of unceasing pain that had never “let up” at any rate from the
moment when, having come up from the country with Katya’s kisses
still upon his lips, he had found Pauline in his dining-room, and had
heard that Dudley Leicester didn’t know.
He remained seated, staring, brooding at the carpet just before
Pauline’s feet, and suddenly she said: “Oh, Robert, what did you do
it for?”
He rose up suddenly and stood over her, and when he held both
her small hands between his own, “You’d better,” he said—“it’ll be
better for both you and me—put upon it the construction that shows
the deepest concern for you.”
And suddenly from behind their backs came the voice of Katya
Lascarides.
“Well,” she said, “Robert knows everything. Who is the man that
rang up 4,259 Mayfair?”
Robert Grimshaw hung his head for a moment, and then:
“I did,” he said.
Katya only answered, “Ah!” Then, very slowly, she came over
and put one hand on Pauline’s shoulder. “Oh, you poor dear,” she
exclaimed, and then to Robert: “Then you’d better come and tell him
so. I’ll stake my new hat to my professional reputation that it’ll put
him on to his legs at once.”
And with an air of taking him finally under her wing, she
conducted him down the passage to Dudley Leicester’s room.

In the dining-room Pauline stood for a long time looking down at

her fingers that rested upon the tablecloth. The air was full of little
noises—the clitter of milk-cans, the monotonous sound of water
pulsing continuously from the mains, the voices of two nurses as
they wheeled their charges home from the Park. The door-bell rang,
but no one disturbed her. With the light falling on her hair, absolutely
motionless, she looked down at her fingers on the white cloth and
smiled faintly.

II

IN the long, dark room where Dudley Leicester still sprawled in his
deep chair, Katya stopped Robert Grimshaw near the door.
“I’ll ask him to ask you his question,” she said, “and you’ll
answer it in as loud a voice as you can. That’ll cure him. You’ll see. I
don’t suppose you expected to see me here.”
“I didn’t expect it,” he answered, “but I know why you have
come.”
“Well,” she said, “if he isn’t cured, you’ll be hanging round him
for ever.”
“Yes, I suppose I shall be hanging round him for ever,” he
answered.
“And more than that, you’ll be worrying yourself to death over it.
I can’t bear you to worry, Toto,” she said. She paused for a long
minute and then she scrutinized him closely.
“So it was you who rang him up on the telephone?” she said. “I
thought it was, from the beginning.”
“Oh, don’t let’s talk about that any more,” Grimshaw said; “I’m
very tired; I’m very lonely. I’ve discovered that there are things one
can’t do—that I’m not the man I thought I was. It’s you who are
strong and get what you want, and I’m only a meddler who muddles
and spoils. That’s the moral of the whole thing. Take me on your own
terms and make what you can of me. I am too lonely to go on alone
any more. I’ve come to give myself up. I went down to Brighton to
give myself up to you on condition that you cured Dudley Leicester.
Now I just do it without any conditions whatever.”
 She looked at him a little ironically, a little tenderly.
“Oh, well, my dear,” she said, “we’ll talk about that when he’s
cured. Now come.”
She made him stand just before Leicester’s sprawled-out feet,
and going round behind the chair, resting her hands already on
Leicester’s hair in preparation for bending down to make, near his
ear, the suggestion that he should put his question, she looked up at
Robert Grimshaw.
“You consent,” she said, with hardly a touch of triumph in her
voice, “that I should live with you as my mother lived with my father?”
And at Robert Grimshaw’s minute gesture of assent: “Oh, well, my
dear,” she continued quite gently, “it’s obvious to me that you’re more
than touched by this little Pauline of ours. I don’t say that I resent it. I
don’t suggest that it makes you care for me any less than you should
or did, but I’m sure, perfectly sure, of the fact such as it is, and I’m
sure, still more sure, that she cares extremely for you. So that ...”
She had been looking down at Dudley Leicester’s forehead, but she
looked up again into Robert Grimshaw’s eyes. “I think, my dear,” she
said slowly, “as a precaution, I think you cannot have me on those
terms; I think you had better”—she paused for the fraction of a
minute—“marry me,” and her fingers began to work slowly upon
Dudley Leicester’s brows. There was the least flush upon her
cheeks, the least smile round the corners of her lips, she heaved the
ghost of a sigh.
“So that you get me both ways,” Robert Grimshaw said; and his
hands fell desolately open at his side.
“Every way and altogether,” she answered.
 EPISTOLARY EPILOGUE

“IT was a summer evening four years later when, upon the sands of
one of our most fashionable watering-places, a happy family group,
consisting of a buxom mother and several charming children, might
have been observed to disport itself. Who can this charming matron
be, and who these lovely children, designated respectively Robert,
Dudley, Katya, and Ellida?
“And who is this tall and robust gentleman who, wearing across
the chest of his white cricketing flannel the broad blue ribbon of His
Majesty’s Minister for Foreign Affairs, bearing in one hand
negligently the Times of the day before yesterday and in the other a
pastoral rake, approaches from the hayfields, and, with an indulgent
smile, surveys the happy group? Taking from his mouth his pipe—for
in the dolce far niente of his summer vacation, when not called upon
by his duties near the Sovereign at Windsor, he permits himself the
relaxation of the soothing weed—he remarks:
“‘The Opposition fellows have lost the by-election at Camber.’
“Oblivious of his pipe, the charming matron casts herself upon
his neck, whilst the children dance round him with cries of
congratulation, and the trim nurses stand holding buckets and
spades with expressions of respectful happiness upon their
countenances. Who can this be?
“And who, again, are these two approaching along the sands
with happy and contented faces—the gentleman erect, olive-
skinned, and, since his wife has persuaded him to go clean-shaven,
appearing ten years younger than when we last saw him; the lady
dark and tall, with the first signs of matronly plumpness just
appearing upon her svelte form? They approach and hold out their
hands to the happy Cabinet Minister with attitudes respectively of
manly and ladylike congratulation, whilst little Robert and little Katya,
uttering joyful cries of ‘Godmama’ and ‘Godpapa!’ dive into their
pockets for chocolates and the other presents that they are
accustomed to find there.
“Who can these be? Our friend the reader will have already
guessed. And so, with a moisture at the contemplation of so much
happiness bedewing our eyes, we lay down the pen, pack up the
marionettes into their box, ring down the curtain, and return to our
happy homes, where the wives of our bosoms await us. That we
may meet again, dear reader, is the humble and pious wish of your
attached friend, the writer of these pages.”

Thus, my dear ——, you would have me end this book, after I
have taken an infinite trouble to end it otherwise. No doubt, also, you
would have me record how Etta Hudson, as would be inevitably the
case with such a character, eventually became converted to Roman
Catholicism, and ended her days under the direction of a fanatical
confessor in the practice of acts of the most severe piety and
mortification, Jervis, the butler of Mr. Dudley Leicester, you would
like to be told, remained a humble and attached dependent in the
service of his master; whilst Saunders, Mr. Grimshaw’s man, thinking
himself unable to cope with the duties of the large establishment in
Berkeley Square which Mr. Grimshaw and Katya set up upon their
marriage, now keeps a rose-clad hostelry on the road to Brighton.
But we have forgotten Mr. Held! Under the gentle teaching of Pauline
Leicester he became an aspirant for Orders in the Church of
England, and is now, owing to the powerful influence of Mr. Dudley
Leicester, chaplain to the British Embassy at St. Petersburg.
But since, my dear ——, all these things appear to me to be
sufficiently indicated in the book as I have written it, I must confess
that these additions, inspired as they are by you—but how much
better they would have been had you actually written them! these
additions appear to me to be ugly, superfluous, and disagreeable.
The foxes have holes, the birds of the air have nests, and you,
together with the great majority of British readers, insist upon having
a happy ending, or, if not a happy ending, at least some sort of an
ending. This is a desire, like the desire for gin-and-water or any other
comforting stimulant, against which I have nothing to say. You go to
books to be taken out of yourself, I to be shown where I stand. For
me, as for you, a book must have a beginning and an end. But
whereas for you the end is something arbitrarily final, such as the
ring of wedding-bells, a funeral service, or the taking of a public-
house, for me—since to me a novel is the history of an “affair”—
finality is only found at what seems to me to be the end of that
“affair.” There is in life nothing final. So that even “affairs” never really
have an end as far as the lives of the actors are concerned. Thus,
although Dudley Leicester was, as I have tried to indicate, cured
almost immediately by the methods of Katya Lascarides, it would be
absurd to imagine that the effects of his short breakdown would not
influence the whole of his after-life. These effects may have been to
make him more conscientious, more tender, more dogged, less self-
centred; may have been to accentuate him in a great number of
directions. For no force is ever lost, and the ripple raised by a stone,
striking upon the bank of a pool, goes on communicating its force for
ever and ever throughout space and throughout eternity. But for our
vision its particular “affair” ends when, striking the bank, it
disappears. So for me the “affair” of Dudley Leicester’s madness
ended at the moment when Katya Lascarides laid her hands upon
his temple. In the next moment he would be sane, the ripple of
madness would have disappeared from the pond of his life. To have
gone on farther would have been, not to have ended this book, but to
have begun another, which—the fates being good—I hope to write. I
shall profit, without doubt, by your companionship, instruction, and
great experience. You have called me again and again an
Impressionist, and this I have been called so often that I suppose it
must be the fact. Not that I know what an Impressionist is.
Personally, I use as few words as I may to get any given effect, to
render any given conversation. You, I presume, do the same. You
don’t, I mean, purposely put in more words than you need—more
words, that is to say, than seem to you to satisfy your desire for
expression. You would probably render a conversation thus:
“Extending her hand, which was enveloped in creamy tulle, Mrs.
Sincue exclaimed, ‘Have another cup of tea, dear?’ ‘Thanks—two
lumps,’ her visitor rejoined. ‘So I hear Colonel Hapgood has eloped
with his wife’s French maid!’”
I should probably set it down:
“After a little desultory conversation, Mrs. Sincue’s visitor,
dropping his dark eyes to the ground, uttered in a voice that betrayed
neither exultation nor grief, ‘Poor old Hapgood’s cut it with Nanette.
Don’t you remember Nanette, who wore an apron with lace all round
it and those pocket things, and curled hair?’”
This latter rendering, I suppose, is more vague in places, and in
other places more accentuated, but I don’t see how it is more
impressionist. It is perfectly true you complain of me that I have not
made it plain with whom Mr. Robert Grimshaw was really in love, or
that when he resigned himself to the clutches of Katya Lascarides,
whom personally I extremely dislike, an amiable but meddlesome
and inwardly conceited fool was, pathetically or even tragically,
reaping the harvest of his folly. I omitted to add these comments,
because I think that for a writer to intrude himself between his
characters and his reader is to destroy to that extent all the illusion of
his work. But when I found that yourself and all the moderately quick-
minded, moderately sane persons who had read the book in its
original form failed entirely to appreciate what to me has appeared
as plain as a pikestaff—namely, that Mr. Grimshaw was extremely in
love with Pauline Leicester, and that, in the first place, by marrying
her to Dudley Leicester, and, in the second place, by succumbing to
a disagreeable personality, he was committing the final folly of this
particular affair—when I realized that these things were not plain, I
hastened to add those passages of explicit conversation, those
droppings of the eyelids and tragic motions of the hands, that you
have since been good enough to say have made the book.
Heaven knows, one tries enormously hard to be simple, to be
even transparently simple, but one falls so lamentably between two
stools. Thus, another reader, whom I had believed to be a person of
some intellect, has insisted to me that in calling this story “A Call” I
must have had in my mind something mysterious, something
mystical; but what I meant was that Mr. Robert Grimshaw, putting the
ear-piece to his ear and the mouthpiece to his mouth, exclaimed,
after the decent interval that so late at night the gentleman in charge
of the exchange needs for awaking from slumber and grunting
something intelligible—Mr. Grimshaw exclaimed, “Give me 4259
Mayfair.” This might mean that Lady Hudson was a subscriber to the
Post Office telephone system, but it does not mean in the least that
Mr. Grimshaw felt religious stirrings within him or “A Call” to do
something heroic and chivalrous, such as aiding women to obtain
the vote.
So that between those two classes of readers—the one who
insist upon reading into two words the whole psychology of moral
revivalism, and the others who, without gaining even a glimpse of
meaning, will read or skip through fifty or sixty thousand words, each
one of which is carefully selected to help on a singularly plain tale—
between these two classes of readers your poor Impressionist falls
lamentably enough to the ground. He sought to point no moral. His
soul would have recoiled within him at the thought of adorning by
one single superfluous word his plain tale. His sole ambition was to
render a little episode—a small “affair” affecting a little circle of
people—exactly as it would have happened. He desired neither to
comment nor to explain. Yet here, commenting and explaining, he
takes his humble leave, having packed the marionettes into the
case, having pulled the curtain down, and wiping from his troubled
eyes the sensitive drops of emotion. This may appear to be an end,
but it isn’t. He is, still, your Impressionist, thinking what the devil—
what the very devil—he shall do to make his next story plain to the
most mediocre intelligence!

THE END
*** END OF THE PROJECT GUTENBERG EBOOK A CALL ***

Updated editions will replace the previous one—the old editions

will be renamed.

Creating the works from print editions not protected by U.S.

copyright law means that no one owns a United States copyright
in these works, so the Foundation (and you!) can copy and
distribute it in the United States without permission and without
paying copyright royalties. Special rules, set forth in the General
Terms of Use part of this license, apply to copying and
distributing Project Gutenberg™ electronic works to protect the
PROJECT GUTENBERG™ concept and trademark. Project
Gutenberg is a registered trademark, and may not be used if
you charge for an eBook, except by following the terms of the
trademark license, including paying royalties for use of the
Project Gutenberg trademark. If you do not charge anything for
copies of this eBook, complying with the trademark license is
very easy. You may use this eBook for nearly any purpose such
as creation of derivative works, reports, performances and
research. Project Gutenberg eBooks may be modified and
printed and given away—you may do practically ANYTHING in
the United States with eBooks not protected by U.S. copyright
law. Redistribution is subject to the trademark license, especially
commercial redistribution.

START: FULL LICENSE